Samuel Saldana v. G. Lewis

MEMORANDUM

Petitioner/Appellant Samuel Saldaña was convicted of carjacking by a jury in California’s Sacramento County. Saldaña filed a timely petition for writ of habeas corpus in the Eastern District of California. Saldaña then dismissed his petition in the Eastern District voluntarily, litigated his claims to completion in state court, and returned to the district court with a new petition well after the one-year statute of limitations had elapsed. See 28 U.S.C. § 2244 (d)(1)(A). Saldaña now argues that he is entitled to equitable tolling.

By dismissing his first federal petition “without prejudice,” Saldaña argues, the district court misled Saldaña to believe that he would be free to file a second petition after exhausting his claims in state court without regard for the statute of limitations. However, Saldaña cannot have relied on the district court’s order because he voluntarily dismissed his first petition before the order issued: A voluntary dismissal terminates the action immediately, leaving nothing more for the district court to do. See Fed.R.Civ.P. 41(a)(1)(A)(i); Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074 , 1077 (9th Cir.1999). Further, Saldaña’s…